Necessity

The defence of necessity exists to excuse the offender who, in short had “no reasonable opportunity for an alternative course of action which did not involve a breach of the law”

The defence of necessity exists to excuse the offender who, in short had “no reasonable opportunity for an alternative course of action which did not involve a breach of the law”

The elements of the defence were set out in R v Loughnan [1981] VR 443, where the Full Court of the Supreme Court of Victoria stated that “the criminal act or acts must have been done only in order to avoid certain consequences which would have inflicted irreparable evil upon the accused or upon others he was bound to protect… The other two elements involved… immediate peril and proportion…”

More recently, in Veira v Cook [2021] NSWCA 302,  the Court of Appeal held that it was necessary that the harm sought to be avoided must be “death or serious injury to her or some other person”, and that harm to an animal was insufficient.

 

Loughnan

R v Loughnan [1981] VR 443

“It will be seen from the statement by Sir James Fitzjames Stephen that there are three elements involved in the defence of necessity. First, the criminal act or acts must have been done only in order to avoid certain consequences which would have inflicted irreparable evil upon the accused or upon others he was bound to protect… The other two elements involved, which were identified by Menhennitt, J. in R. v. Davidson, supra, at p. 671 can for convenience be given the labels, immediate peril and proportion…”